| Robertson v New York City Hous. Auth. |
| 2009 NY Slip Op 00305 [58 AD3d 535] |
| January 22, 2009 |
| Appellate Division, First Department |
| Lena Lee Robertson, Appellant, v New York City HousingAuthority, Respondent. |
—[*1] Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel) for respondent.
Judgment, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered August 28, 2007,dismissing the complaint, and bringing up for review an order, same court and Justice, enteredJuly 19, 2007, which granted defendant's motion for summary judgment and denied plaintiff'scross motion to strike defendant's answer, unanimously affirmed, without costs. Appeal from theaforesaid order unanimously dismissed, without costs, as subsumed in the appeal from thejudgment.
Plaintiff sues for personal injuries suffered by decedent in a fire in an apartment leased fromdefendant. The fire marshal determined the fire originated in electrical cords on the floor.Plaintiff claimed the cause of the fire was an electrical short or faulty electrical system, anddecedent's injuries were exacerbated by the absence of a working smoke detector and a defect inthe front door that prevented her escape.
It is undisputed that defendant met its burden of proof on its motion for summary judgment.The fire marshal's report demonstrated the absence of a factual issue as to whether defendant'swiring was defective (see e.g. Delgadov New York City Hous. Auth., 51 AD3d 570 [2008], lv denied 11 NY3d 706[2008]). Defendant also discharged its duty to provide smoke detectors (seeAdministrative Code of City of NY § 27-2045 [a] [1]; see Peyton v State of Newburgh, Inc., 14 AD3d 51 [2004], lvdenied 5 NY3d 704 [2005]). As to the supposed defect in the front door, defendantdemonstrated its entitlement to judgment with plaintiff's testimony that the door was not jammedclosed, and that decedent could not open the locks because she panicked (see Graham v New York City Hous.Auth., 42 AD3d 323 [2007], lv denied 9 NY3d 816 [2007]).
The evidence submitted by plaintiff in opposition to the motion failed to raise a question offact as to whether the alleged defects in the electrical system caused the fire. Her expert'saffidavit was unsupported by the evidence and was speculative. The expert did not identify aspecific defect in the circuit breaker or internal wiring that could have caused the fire. Moreover,plaintiff did not present evidence contradicting defendant's proof that it had installed operationalsmoke detectors in the apartment. Nor did plaintiff provide evidence to support the suggestionthat a defect in the front door had prevented decedent from exiting the apartment. Conclusory[*2]statements presuming the existence of a defect, unsupportedby factual observations, are insufficient to warrant the denial of summary judgment (seeDelgado, 51 AD3d at 571; Graham, 42 AD3d at 324; Zvinys v Richfield Inv. Co., 25 AD3d358, 359 [2006], lv denied 7 NY3d 706 [2006]).
Plaintiff also failed to meet her burden, on her cross motion to strike defendant's answer, ofshowing that the contents of the apartment were discarded in bad faith or that such disposalprejudiced her ability to prove her claims. There is no evidence that defendant acted in bad faithbefore it cleaned the apartment, which plaintiff had a prior opportunity to inspect. The recordindicates that the cleaning was done after inspection by plaintiff's prospective counsel and inpreparation for the apartment's rehabitation. The focus of plaintiff's claim is that there was adefect in the circuit breakers or internal wiring, which, it is undisputed, remained unchanged andavailable for further inspection, undermining any claim of prejudice warranting the striking ofthe answer (see McMahon v FordMotor Co., 34 AD3d 263 [2006]).
We have considered plaintiff's other arguments and find them unavailing.Concur—Tom, J.P., Andrias, Nardelli, Catterson and Moskowitz, JJ.